Recent decisions of the Pennsylvania Supreme Court and Commonwealth Court of Pennsylvania have had a dramatic effect on the right of an injured worker to continue to collect workers compensation benefits.  Under Pennsylvania law, an injured worker who is incapable of returning to his regular job because of the injury is entitled to workers compensation disability benefits unless a light duty job is offered by the employer or the employer can establish an “earning capacity” for the employee. 
 
Frequently, the injured worker performs a very physically demanding job for the employer and the employer does not have any light duty positions.  Thus, the severely injured employee will likely never be able to return to employment with that employer.  Often this injured employee will have limited skills which prevent him from returning to work with another employer who may have light duty work available.  In these situations, the injured employee’s wage loss is covered through workers compensation benefits paid by the employer or employer’s workers compensation carrier.
 
            If the injured employee is eligible for the employer’s pension plan or for Social Security old-age/retirement benefits, the employee may apply for such benefits to supplement his workers compensation benefits.  However, the Commonwealth Court has indicated that the injured employee’s election of pension benefits or Social Security retirement benefits could result in the termination of his workers compensation benefits.  The Pennsylvania Commonwealth Court has indicated that the election of pension benefits or Social Security retirement benefits is evidence that the employee has “retired” from the workforce. 
 
            The Pennsylvania Supreme Court has held that an employer is not required to offer an injured employee a light duty job or show that the employee has an earning capacity if the injured worker has removed himself from the work force through retirement.  Where the injured worker has removed himself from the work force, the employer can terminate that injured employee’s workers compensation benefits.  In a subsequent case before the Commonwealth Court, the Court was asked to decide when an injured employee is determined to have “voluntarily removed himself or herself from the workforce”.  (See In City of Pittsburgh v. Workers Compensation Appeal Board (Robinson)).  The Commonwealth Court addressed the issue of whether the acceptance of a pension gives rise to a presumption that the injured employee has removed himself or herself from the workforce.  The Court noted that this determination must be based upon the “totality of the circumstances” surrounding the injured employee’s election of retirement benefits.  The Court specifically stated:
 
           
            In determining whether the acceptance of a pension should create a presumption that the [injured worker] has terminated her career, it is important to look at the facts involved and the type of pension….Circumstances that could support a holding that the [injured worker] has retired include: (1) whether there is no dispute that the injured worker retired; (2) the injured worker’s acceptance of a retirement pension; and (3) the injured worker’s acceptance of a pension and refusal of suitable employment within her restrictions.
 
 
            Thus, if you are injured and unable to return to work with your employer, you should consult with the attorneys of Lamb McErlane before deciding whether to accept the employer’s retirement or pension benefits as such election could result in the termination of your workers compensation benefits.  Similarly, you should consult with us before applying for Social Security retirement benefits as such benefits could also have an adverse impact on your workers compensation benefits.
 
 
Contact John J. Stanzione, Partner, direct line: 610.701.4415,
jstanzione@lambmcerlane.com